[Federal Register Volume 64, Number 176 (Monday, September 13, 1999)]
[Proposed Rules]
[Page 49424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23718]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD 09-99-007]
Safety Zone, Detroit River
AGENCY: Coast Guard, DOT.
ACTION: Notice; withdrawal of proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is withdrawing a notice of proposed rulemaking
(NPRM) to establish a temporary safety zone on the American side of the
Detroit River for the Windsor Can-AM Offshore Power Boat Race. The
event sponsor withdrew his application for safety reasons, and based on
comments received by the Coast Guard, the proposed rule was criticized
and deemed not in the best interest of this vital international
waterway.
DATES: This proposed rule is withdrawn effective July 30, 1999.
ADDRESSES: Unless otherwise indicated, documents referred to in this
notice are available for inspection or copying at Marine Safety Office,
Detroit between 7 a.m. and 4 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: LTJG French, Coast Guard Marine Safety
Office Detroit, 110, at 313-568-9580.
SUPPLEMENTARY INFORMATION:
Regulatory History
On 3 May, 1999, the Coast Guard published a notice of proposed
rulemaking in the Federal Register (64 FR 23570-23571) that the
American side of the Detroit River would be closed for the Windsor Can-
Am Offshore Race, which at the time was scheduled to take place on
August 22, 1999. In the mean time, the Coast Guard received notice from
the event organizer on June 4, 1999 of his intention not to hold the
race. The organizer noted safety concerns resulting from recent fatal
accidents in the Detroit river where high currents and murky waters
made rescue of victims impossible. The event sponsor believed such a
race in such a location was ``unsafe.''
The Coast Guard received 7 letters in response to its proposed
rulemaking during the public comment period, all of which were opposed
to the closure. Relevant issued commenters raised ranged from adverse
economic consequences that were likely to result from the river closure
to possible violations of existing binational agreements between the
United States and Canada
1. The Detroit and St. Clair River system hereafter called the
Detroit River Corridor, is a key international trade route, that if
closed, would adversely affect the entire Great Lakes and restrict
access to other key economic ports.
2. The proposed closure appears to contradict the Boundary Waters
Treaty of 1909 which states in part, ``The navigation of all boundary
waters shall forever continue free and open for the purposes of
commerce to the inhabitants and to the ships, vessels and boats of both
countries equally.'' The treaty goes on to establish a precedence to be
observed among the various uses enumerated . . . for these waters.''
According to the treaty, ``No use shall be permitted which tends
materially to conflict with or restrain any other use which is given
preference over it in this order of precedence:
(1) Uses for domestic and sanitary purposes;
(2) Uses for navigation
(3) Uses for power and irrigation.''
As the term ``domestic'' is not defined, and recreational use is not
spelled out or given priority in the treaty, decisions on boundary
water uses are in the purview of the International Joint Commission.
3. Closure of the river for even a few hours has a ripple effect on
commercial shipping in the Great Lakes that causes more than a minor
inconvenience to vessels. Closure of any part of the Detroit River
Corridor presents safety issue for vessel operators related to reduced
speed and steerage. Compound that with closure of the Belle Isle
Anchorage and, for the prudent commercial mariner, you shut down the
entire river system for up to six hours, shutting down commercial
navigation from Lake Erie to Lake Huron. Such a closure would have a
detrimental effect not only on vessel operators, but also pilots and
terminal operators, with impacts on the time sensitive nature of
delivering raw materials to Great lakes ports and plants.
4. Race locations are variables that can be controlled, so as not
to impede safe commercial navigation. Races similar to the one proposed
are conducted in other areas all over the Great Lakes without river
closures. A notable example is the Detroit Thunderfest. Those events
are held in locations mutually agreeable to recreational and
navigational interests. Closure of the river for this event to promote
essentially a single sponsor's commercial use of the river over
navigational use would set a precedent that might lead to applications
for more such events in the future, resulting in further restrictions
to navigation. More than that, though, a decision to close the river to
the commercial advantage of one sponsor gives that sponsor a material
benefit that other sponsors do not get--an arbitrary and capricious
decision in favor of one person or group, made to the disadvantage and
harm of others. It isn't fair.
5. The proposed rulemaking does not address fully the idea of just
compensation for the maritime community adversely affected by the
action. Costs are difficult to calculate, especially hidden costs. A
more detailed agreement on compensation would need to be worked out
well in advance of any such event.
The Coast Guard agrees with all these points of contention. Before
withdrawing his permit application, the event sponsor did not have the
benefit of the public comments in this matter or an opportunity to
address the issues raised during the comment period. The Coast Guard
appreciates all the efforts of the regulated community in sharing its
views and will retain the public docket for future use. Accordingly,
the Coast Guard is withdrawing the notice of proposed rulemaking and
terminating further rulemaking on this proposal. Based on the
regulatory history of this event, the Coast Guard Captain of the Port
Detroit will be reluctant to consider proposed closures in any part of
the Detroit River Corridor in the future. The Coast Guard will also
work closely with Canadian Officials and the International Joint
Commission to ensure that all provisions of the Boundary Waters Treaty
of 1909 are upheld.
Dated July 30, 1999.
B. P. Hall,
Commander, USCG, Acting Captain of the Port, Detroit.
[FR Doc. 99-23718 Filed 9-10-99; 8:45 am]
BILLING CODE 4910-15-M
